Tonn v. Anderson et al
Filing
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DECISION AND ORDER signed by Judge William C Griesbach on 12/20/2023 GRANTING Defendants' 17 Motion for Summary Judgment and DENYING as Moot Plaintiff's 32 Motion for Summary Judgment. This case is DISMISSED without prejudice. The Clerk enter judgment accordingly. (cc: all counsel and mailed to pro se party)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DENNIS ALLEN TONN,
Plaintiff,
v.
Case No. 23-C-555
SCOTT ANDERSON, et al.,
Defendants.
DECISION AND ORDER
Plaintiff Dennis Allen Tonn, who is representing himself, is proceeding on an Eighth
Amendment deliberate indifference claim against Defendants Scott Anderson, Todd Waege, James
Chinavare, Stephen McCullen, James Hawlish, and Brian Burgoon. Dkt. Nos. 13 & 22. On
September 11, 2023, Defendants filed a motion for summary judgment based on Plaintiff’s failure
to exhaust administrative remedies prior to bringing this lawsuit. Dkt. No. 17. On December 11,
2023, Plaintiff filed a motion for summary judgment on the merits. Dkt. No. 32. Because the
undisputed facts show that Plaintiff did not complete the exhaustion process by appealing inmate
complaint #RCI-2023-1253 to the Corrections Complaint Examiner (CCE), the Court will grant
Defendants’ motion for summary judgment based on failure to exhaust administrative remedies,
deny as moot Plaintiff’s motion for summary judgment on the merits, and dismiss this case without
prejudice.
UNDISPUTED FACTS
In this lawsuit, Plaintiff alleges that Correctional Officer (CO) Anderson, CO Waege, CO
Chinavare, CO Hawlish, CO Burgoon, and on-call Nurse McCullen were deliberately indifferent
towards his severe pain when they made him wait five hours to see Health Service Unit (HSU)
staff at the Racine Correctional Institution after he slipped and fell on “snow covered ice” on
December 23, 2022. See Dkt. Nos. 13 & 22. Plaintiff filed two inmate complaints in connection
with these allegations, one involving the failure to clean the snow/ice that caused his fall and
another involving improper medical care for his injuries after his fall. Dkt. No. 20-1.
On January 17, 2023, Plaintiff filed inmate complaint #RCI-2023-825 alleging that, on
December 23, 2022, he slipped and fell on “snow covered ice” at 4:30 a.m. on his way to work.
Dkt. No. 19, ¶¶18-23; see also Dkt. No. 20-2 at 8. Plaintiff complained that the fall could have
been “prevented” if institution staff had “employed inmates to rise early and shovel snow as the
kitchen workers leave their units at that time.” Dkt. No. 20-2 at 8. Plaintiff complained that
institution staff had been “negligent” because the snow was neither shoveled nor the ice salted at
4:30 a.m. when he went to work that day. Id. He noted that he broke his arm from the incident.
Id. The Institution Complaint Examiner (ICE) investigated the circumstances and recommended
affirming the inmate complaint to acknowledge that “staff witnessed PIOC Tonn slip and fall in
the Ozaukee Unit courtyard” and “an incident report had been written.” Id. at 6. The ICE also
noted that Plaintiff received medical care following the incident. Id. The Reviewing Authority
(RA) accepted the ICE’s recommendation and affirmed the inmate complaint on February 17,
2023. Id. at 4.
On January 24, 2023, Plaintiff filed inmate complaint #RCI-2023-1253 alleging that he did
not get proper medical care after his slip and fall on December 23, 2022. Dkt. No. 19, ¶¶27-34;
see also Dkt. No. 20-3 at 9, 11, & 14. Plaintiff complained that he told numerous individuals,
including correctional staff and the on-call nurse, that his arm was in severe pain, but they refused
to listen to him. Dkt. No. 20-3 at 9. Instead, they told him to return to his unit until HSU was
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“ready for [him]” and he was threatened with a disciplinary ticket if he continued to complain
about his pain. Id. Plaintiff alleged that he had to wait six hours before he saw a nurse and that,
even after it was confirmed via x-ray that he had a broken arm, it generally took too long to get
medical care for his broken arm. Id. at 11. He also alleged that ibuprofen was not enough for the
pain, and he eventually ran out of medication. Id. The ICE investigated the circumstances and
recommended dismissing the inmate complaint because “what type of specific care or treatment
must be offered is a matter of professional medical judgment” that Plaintiff could not direct. Id.
at 6-7. The RA accepted the ICE’s recommendation and dismissed the inmate complaint on March
6, 2023 because “Patient complaint was triaged by nursing staff via on-call nurse who determined
same day appointment was appropriate. Patient was seen within 6 hours and referred via state van
to a walk-in clinic for x-rays. Patient has since been seen by the RCI provider, nursing, and
specialty consultation for further evaluation.” Id. at 7. Plaintiff did not appeal either inmate
complaint to the CCE. Dkt. No. 19, ¶35; see also Dkt. No. 25, ¶35.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the moving party shows that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). “Material facts” are those under the applicable substantive law that “might
affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute over a “material fact” is “genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. All reasonable inferences are construed in favor of
the nonmoving party. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party
opposing the motion for summary judgment must “submit evidentiary materials that set forth
specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932,
937 (7th Cir. 2010) (citations omitted). “The nonmoving party must do more than simply show
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that there is some metaphysical doubt as to the material facts.” Id. Summary judgment is properly
entered against a party “who fails to make a showing sufficient to establish the existence of an
element essential to the party’s case, and on which that party will bear the burden of proof at trial.”
Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotations omitted).
ANALYSIS
Defendants assert that they are entitled to summary judgment because Plaintiff did not
complete the exhaustion process by appealing his inmate complaints to the CCE. Dkt. No. 18 at
11-14. The Court agrees. Under the Prison Litigation Reform Act (PLRA), “no action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until administrative
remedies as are available are exhausted.” 42 U.S.C. §1997e(a). “The primary justification for
requiring prisoners to exhaust administrative remedies is to give the prison an opportunity to
address the problem before burdensome litigation is filed.” Chambers v. Sood, 956 F.3d 979, 983
(7th Cir. 2020). “To satisfy the exhaustion requirement, an inmate must take each of the steps
prescribed by the state’s administrative rules governing prison grievances.” Id. (citing Lockett v.
Bonson, 937 F.3d 1016, 1025 (7th Cir. 2019)). “[A] prisoner must file complaints and appeals in
the place, and at the time, the prison’s administrative rules require.” Pozo v. McCaughtry, 286
F.3d 1022, 1025 (7th Cir. 2002).
Wisconsin has established the Inmate Complaint Review System (ICRS) to review inmate
complaints. Wis. Admin. Code § DOC 310.05. Under the ICRS, an inmate must attempt to
informally resolve the issue with appropriate staff before filing an inmate complaint. § DOC
310.07(1). If those attempts are unsuccessful, an inmate must file a complaint with the ICE within
14 days of the relevant occurrence. § DOC 310.07(2). The ICE must investigate the inmate
complaint and “shall either reject the complaint or send a recommendation to the [RA] within 30
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days from the date of receipt.” § DOC 310.10(7)-(9). The RA shall make a decision within 15
days following receipt of the ICE’s recommendation.
§ DOC 310.11(1). If an inmate is
dissatisfied with the RA’s decision, he “may appeal the reviewing authority decision to the CCE
within 14 days after the date of the decision or if the inmate does not receive a decision 45 days
after the date the ICE enters the complaint.” § DOC 310.09(1). The CCE must investigate the
appeal and “recommend that the [RA’s] decision be affirmed or dismissed, in whole or in part, and
send its recommendation to the [S]ecretary within 45 days of receipt of the appeal.” § DOC
310.12(7)-(9). The Secretary shall make a decision within 45 days following receipt of the CCE’s
recommendation and that decision is final. § DOC 310.13(1)-(3). Inmates are required to exhaust
“all administrative remedies the department has promulgated by rule” before commencing a civil
action. § DOC 310.05.
The undisputed evidence shows that Plaintiff did not satisfy exhaustion prior to bringing
this lawsuit. Plaintiff’s first inmate complaint, #RCI-2023-825, involved negligence in connection
with the failure to clear ice/snow on the ground and did not involve the issues raised in this lawsuit
(i.e., the delay in providing medical care for his broken arm). Plaintiff’s second inmate complaint,
#RCI-2023-1253, clearly raises the issues Plaintiff brings in this lawsuit, but Plaintiff admits that
he did not appeal either inmate complaint to the CCE, as required by the ICRS. Dkt. No. 25, ¶35.
Because Plaintiff was required to complete the exhaustion process by appealing all the way to the
Secretary’s office to satisfy the PLRA’s exhaustion requirement, see Dole v. Chandler, 438 F.3d
804, 809 (7th Cir. 2006), Defendants have met their burden to show that Plaintiff failed to exhaust
administrative remedies prior to bringing this lawsuit.
In response, Plaintiff argues that he initially attempted to file his inmate complaints on
January 3 and January 6, but the ICE returned those inmate complaints with specific instructions
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to informally resolve the issue through the chain of command before refiling his inmate
complaints. See Dkt. No. 23 at 4-5. Plaintiff states that the letters and correspondences he wrote
to the Unit Manager, Security Director, HSU Manager, and Warden attempting to informally
resolve the issue through the chain of command before filing his inmate complaints function to
satisfy his exhaustion requirement because he followed the ICE’s instructions exactly.
Id.
However, the letters and correspondences that Plaintiff drafted before he filed his inmate
complaints are not relevant to the issue of whether he appealed his inmate complaints to the CCE
after he received the ICE’s decision. In other words, Plaintiff may have started the exhaustion
process by following the ICE’s instructions exactly, but he never completed the exhaustion process
by appealing all the way to the Secretary’s office, who makes the final decision. The ICRS clearly
directed inmates to appeal all the way to the Secretary’s office as a condition of bringing a civil
lawsuit, see §§ DOC 310.05 & DOC 310.13(1)-(3), and Plaintiff admits he did not comply with
the requirement.
Plaintiff argues that appealing to the CCE is permissive (not required) because the ICRS
provides that he “may” appeal the RA’s decision to the CCE within 14 days. Dkt. No. 23 at 2.
While it is true that an inmate who is satisfied with the RA’s decision is not required to appeal, an
inmate who is dissatisfied with the RA’s decision (and plans to file a civil action) is required to
utilize “all administrative remedies the department has promulgated by rule.” § DOC 310.05.
Because Plaintiff was dissatisfied with the RA’s decision and sought to file a civil lawsuit to
resolve the issue, he was required to use all available administrative remedies, which he did not
do.
Finally, Plaintiff argues that Defendants’ summary judgment briefing materials were
confusing, and a law librarian had to help him identify Defendants’ summary judgment brief. See
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Dkt. No. 26. Specifically, it appears that the title of the brief was accidently deleted, and the
document simply starts with an “Introduction.” See Dkt. No. 18 at 1. But Defendants’ summary
judgment briefing materials otherwise comply with the Civil Local Rules, including containing the
text of Fed. R. Civ. P. 56 (c), (d), and (e), Civ. L. R. 56(a), Civ. L. R. 56(b), and Civ. L. R. 7; a
memorandum of law; proposed findings of fact; and citations to evidence. See Civ. L. R. 56(a)(b) (E.D. Wis).
Additionally, Plaintiff concedes that a law librarian helped him identify
Defendants’ brief, and he thereafter responded to the brief, so he was not prejudiced by any initial
confusion he experienced due to the minor formatting error on page one of the summary judgment
brief. The remainder of Plaintiff’s arguments involve the merits of his deliberate indifference
claim, see Dkt. No. 24, but the Court has no judicial discretion to make a merits-based exception
to exhaustion. See Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016). Defendants are therefore
entitled to summary judgment based on failure to exhaust administrative remedies and the Court
will grant Defendants’ motion, deny as moot Plaintiff’s motion, and dismiss this case without
prejudice.
CONCLUSION
For these reasons, Defendants’ motion for summary judgment based on failure to exhaust
administrative remedies (Dkt. No. 17) is GRANTED. Plaintiff’s motion for summary judgment
on the merits (Dkt. No. 32) is DENIED as moot. This case is DISMISSED without prejudice.
The Clerk shall enter judgment accordingly.
SO ORDERED at Green Bay, Wisconsin this 20th day of December, 2023.
s/ William C. Griesbach
William C. Griesbach
United States District Judge
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This order and the judgment to follow are final. Plaintiff may appeal this Court’s decision to the Court
of Appeals for the Seventh Circuit by filing in this Court a notice of appeal within 30 days of the entry
of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline if a party timely requests
an extension and shows good cause or excusable neglect for not being able to meet the 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this Court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serious physical injury. Id.
Under certain circumstances, a party may ask this Court to alter or amend its judgment under Federal
Rule of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure
60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the
entry of judgment. Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of judgment. The Court cannot extend
these deadlines. See Fed. R. Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any, further action is
appropriate in a case.
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